Spectrum Laboratory Products, Inc.
("Seller" or "Spectrum") is
engaged in the business of manufacturing, repackaging
and distribution of fine chemicals and laboratory
supplies to its customers. These Terms and
Conditions (the "Terms") are incorporated
into any purchase order ("Order") executed
by Spectrum and the Customer and shall be deemed
accepted by Seller's commencement of performance,
provision of services, shipment of products
("Services" and "Products"), or
other indication of agreement, whichever occurs first,
and shall constitute acceptance of this Order and
all of its terms and conditions (the
"Acceptance Date"). "By using Seller's
products or services, you (the
"Customer") agree to be bound by the
following terms and conditions which together with
any Order, comprises the entire agreement
("Agreement") between Spectrum and the
Customer. Any provisions contained in any document
issued by Customer are expressly rejected and if the
terms and conditions in this Agreement differ from
the terms of customer’s offer, this document
shall be construed as a counter offer and shall not
be effective as an acceptance of customer’s
document. This is the complete and exclusive statement
of the contract between Seller and Customer with
respect to Customer’s purchase of the
Products. No waiver, consent, modification, amendment
or change of the terms contained herein shall be
binding unless in writing and signed by Seller and
Customer. Seller’s failure to object to terms
contained in any subsequent communication from
Customer will not be a waiver or modification of the
terms set forth herein. All orders are subject to
acceptance in writing by an authorized representative
of Seller.
1. Price
All prices published by Seller or quoted by
Seller’s representatives may be changed at any
time without notice. All prices quoted by Seller or
Seller’s representatives are valid for thirty
(30) days, unless otherwise stated in writing. All
prices for Products will be as specified by Seller
or, if no price has been specified or quoted, will
be Seller’s price in effect at the time of
shipment. All prices are subject to adjustment on
account of specifications, quantities, raw
materials, cost of production, shipment arrangements
or other terms or conditions which are not part of
Seller’s original price quotation.
2. Specifications
Product specifications are subject to change without
prior notice. Please see change control agreement for
further information.
3. Payment Terms
Seller may invoice Customer upon shipment for the
price and all other charges payable by Customer in
accordance with the terms herein. If no payment
terms are stated on the face of the Order, payment
shall be net thirty (30) days from the date of
invoice. If Customer fails to pay any amounts when
due, Customer shall pay Seller interest thereon at a
periodic rate of one and one-half percent (1.5%) per
month (or the highest rate permitted by law),
together with all costs and expenses (including
without limitation reasonable attorneys’ fees
and costs) incurred by Seller in collecting such
overdue amounts or otherwise enforcing
Seller’s rights hereunder. Seller reserves the
right to require from Customer full or partial
payment in advance if Seller believes in good faith
that Customer’s financial condition does not
justify the terms of payment specified. All payments
shall be made in U.S. Dollars. Failure to pay in
established terms will result in delay of order
delivery and subject to account review.
4. Taxes and Other Charges
Prices for the Products exclude all sales, value
added and other taxes and duties imposed with
respect to the sale, delivery, or use of any
Products, all of which taxes and duties must be paid
by Customer.
5. Product Return Policy
Contact
Customer Service to request a Return Materials
Authorization (RMA) number. Requests to return
products must be made within 15 days of receipt for
domestic orders; international requests must be made
within 30 days. Authorized returns to
Spectrum must be received within 15 days of issuance
of RMA. All returns must be packed in the
original packaging and labeled in accordance with
DOT regulations applying to transportation of
hazardous materials and in a manner, which will
preserve the product from any damage in order to
insure proper credit. To ensure prompt handling, the
return authorization number should be placed on the
outside of the package and a detailed explanation of
the defect enclosed with the Product. Spectrum
will attempt to accommodate all reasonable requests
for returns; however, all returned items are subject
to a minimum 25% restocking fee, plus return shipping.
Non-returnable Product:
•
Temperature sensitive products
• Compendia chemicals (USP, EP, JP, NF,
FCC)
• Regulated or
controlled substances
•
Sterile products
• Items not
stocked in Spectrum warehouses
Credit will not be allowed for Products returned
without the prior written consent of Seller.
6. Damaged Shipments
Please
inspect your Spectrum shipment upon receipt. If any
external damage or shortage is noticed, accept the
shipment only after the driver has noted the damage
on the delivery receipt. Keep all containers and
packaging material for inspection; take pictures and
submit to Spectrum Customer Care. Spectrum reserves
the right to repair (investigate) damaged product
before replacement or credit is determined.
7. Product and Service Warranties and
Limitation of
Liability
(a) Spectrum warrants
to Customer that all products provided to Customer
pursuant to this agreement (each a
"Product", and collectively, the
"Products") will meet the manufacturer's
specifications for a term equal to the warranty
period stated in the Product manufacturer's literature
or sixty (60) days, whichever is longer.
(b) If any Product or service warranted
hereunder proves defective or non-conforming,
Spectrum's sole liability and Customer's sole remedy
hereunder shall be for Spectrum, to repair or, at
Spectrum's option, (i) replace (or re-perform the
Service), at no cost to Customer, any such defective
or non-conforming Product with a non-defective or
conforming Product (as applicable) or (ii) credit
Customer's account for all amounts paid with respect
to the defective or non-conforming Product or
Service upon Spectrum's receipt of the defective or
non-conforming Product. In the event of replacement,
the replacement Product will be warranted for the
remainder of the original warranty period or ninety
(90) days, whichever is longer.
(c) However, in no event shall Seller have any
obligation to make repairs, replacements or
corrections required, in whole or in part, as the
result of (i) normal wear and tear, (ii) accident,
disaster or event of force majeure, (iii) misuse,
fault or negligence of or by Customer, (iv) use of
the Products in a manner for which they were not
designed, (v) causes external to the Products such as,
but not limited to, power failure or electrical
power surges, or (vi) improper storage and handling
of the Products. Any installation, maintenance,
repair, service, relocation or alteration to or of,
or other tampering with, the Products performed by
any person or entity other than Seller without
Seller’s prior written approval, or any use of
replacement parts not supplied by Seller, shall
immediately void and cancel all warranties with
respect to the affected Products.
Seller’s warranty shall be limited to Products
which are defective or non-conforming, which is
defined as a Product which is outside of the
manufacturer's defined Product specifications. A
defective or non-conforming product does not include
Products that fail to meet any fitness of use by
Customer or any unique Customer operating conditions
or applications.
(d) If you believe a Product falls within our
warranty and requires repair or service, please
contact Spectrum for instructions on how to proceed.
The obligations created by this warranty statement to
repair or replace a defective Product shall be the
sole remedy of Customer in the event of a defective
Product. SPECTRUM HEREBY DISCLAIMS ALL OTHER
WARRANTIES OR GUARANTEES WITH RESPECT TO THE SUBJECT
MATTER OF THIS AGREEMENT, WHETHER STATUTORY,
WRITTEN, ORAL, EXPRESS OR IMPLIED INCLUDING, WITHOUT
LIMITATION, ANY WARRANTY OF MERCHANTABILITY,
SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Any warranties or claims, expressed or implied, by
Spectrum for its products are valid only if they are
sold directly to the Customer by Spectrum or sold
through one of the US or worldwide distributors
authorized by Spectrum.
Notwithstanding the foregoing, Products supplied by
Seller that are obtained by Seller from an original
manufacturer or third party supplier are not
warranted by Seller, but Seller agrees to assign to
Customer any warranty rights in such Product that
Seller may have from the original manufacturer or
third party supplier, to the extent such assignment
is allowed by such original manufacturer or third
party supplier.
8. Limitation of Liability
Notwithstanding anything to the contrary contained
herein, the liability of Seller under these terms
and conditions (whether by reason of breach of
contract, tort, indemnification, or otherwise, but
excluding liability of Seller for breach of warranty
(the sole remedy for which shall be as provided
under WARRANTY above)) shall not exceed an amount
equal to the lesser of (a) the total purchase price
theretofore paid by Customer to Seller with respect to
the Product(s) giving rise to such liability or (b)
one million dollars ($1,000,000). Notwithstanding
anything to the contrary contained herein, in no event
shall Seller be liable for any indirect, special,
consequential or incidental damages (including
without limitation damages for loss of use of
facilities or equipment, loss of revenue, loss of
data, loss of profits or loss of goodwill),
regardless of whether Seller (a) has been informed
of the possibility of such damages or (b) is
negligent.
9. Indemnification
Customer agrees to defend, indemnify and hold
Spectrum, it officers, directors, employees and
agents harmless from and against any and all claims,
actions, lawsuits, including Spectrum’s
attorneys’ fees, expenses, and costs of
litigation, arising from Customer’s purchase
or subsequent sale or transfer of a Product or to any
breach Customer’s obligations under this
Agreement. Customer agrees that its duty to defend,
indemnify and hold Spectrum harmless arises at the
first notice of a claim, action, or lawsuit.
Customer agrees that its duty to defend, indemnify
and to hold Spectrum harmless applies to any
attorneys’ fees, expenses, and costs of
litigation incurred or paid by Spectrum to enforce
this Section 9. This Section 9 shall survive
termination and cancellation of this Agreement.
10. Proprietary
Information
Customer agrees that
all pricing, discounts and technical information that
Seller provides to Customer are the confidential and
proprietary information of Seller. Customer agrees
to (1) keep such information confidential and not
disclose such information to any third party, and (2)
use such information solely for Customer’s
internal purposes and in connection with the
Products supplied hereunder. Nothing herein shall
restrict the use of information available to the
general public. Customer shall inform its employees,
agents, and representatives of these obligations and
shall require them to assume equivalent obligations.
11. Miscellaneous
(a) Termination - This
Agreement may be terminated by either party with
agreed upon written notice delivered to the other
party; This termination will only apply to Purchase
orders that are not in shipment to facility or at
Sellers warehouse. In the event of any
termination or expiration of this Agreement, Customer
shall be billed immediately for Products shipped
through the effective date of such termination or
expiration and all custom Products purchased for
Customer in Spectrum's inventories at such date, and
Customer shall pay the invoiced amount immediately
upon receipt of such invoice.
(b) Delivery, Cancellation and Changes by
Customer - The Products will be
shipped to the destination specified by Customer,
F.O.B. Seller’s shipping point. Seller will have
the right, at its election, to make partial
shipments of the Products and to invoice each
shipment separately. Delivery of all orders will be
FCA (INCOTERMS 2000). Shipping and handling fees,
special packaging materials (e.g., blue ice),
carrier surcharges and hazardous material fees imposed
by government regulation will be added separately to
the invoice. Seller reserves the right to stop
delivery of Products in transit and to withhold
shipments in whole or in part if Customer fails to
make any payment to Seller when due or otherwise
fails to perform its obligations hereunder. All
shipping and delivery dates are approximate only, and
Seller will not be liable for any loss or damage
resulting from any delay in delivery or failure to
deliver which is due to any cause beyond
Seller’s reasonable control. In the event of a
delay due to any cause beyond Seller’s
reasonable control, Seller reserves the right to
terminate the order or to reschedule the shipment
within a reasonable period of time, and Customer
will not be entitled to refuse delivery or otherwise
be relieved of any obligations as the result of such
delay. Orders in process may be canceled only with
Seller’s written or verbal consent and upon
payment of Seller’s cancellation charges and/or
restock fees, where applicable. Orders in process
may not be changed except with Seller’s
written consent and upon agreement by the parties as
to an appropriate adjustment in the purchase price therefore.
12. Title and Risk of Loss
Notwithstanding the trade terms indicated above and
subject to Seller’s right to stop delivery of
Products in transit, title to and risk of loss of
the Products will pass to Customer upon delivery of
possession of the Products by Seller to the carrier;
provided, however, that title to any software
incorporated within or forming a part of the
Products shall at all times remain with Seller or the
licensor(s) thereof, as the case may be.
(a) Severability - If any
term or provision of this Agreement or any
application thereof shall be held invalid or
unenforceable, the remainder of this Agreement and any
application of the terms and provisions shall not be
affected thereby, but shall remain valid and enforceable.
(b) Applicable Law, Venue -
This Agreement is made pursuant to, and shall be
construed and enforced exclusively in accordance
with, the laws of the State of California (and
United States federal law, to the extent applicable),
without giving effect to otherwise applicable
principles of conflicts of law. Any action or
proceeding seeking to enforce any provision of, or
based on any right arising out of, this Agreement
against any of the parties shall be brought in the
courts of the State of California, or, if
applicable, in the United States District Court for
the Central District of California, and each of the
parties consents to the jurisdiction of such courts
(and of the appropriate appellate courts) in any such
action or proceeding. In the event of any legal
proceeding between the Seller and Customer relating
to this Agreement, neither party may claim the right
to a trial by jury, and both parties waive any right
they may have under applicable law or otherwise to a
right to a trial by jury.
(c) Time Limitations -
Regardless of any contrary statute or law, any suit
seeking to enforce any provision of, or based on any
right arising out of, this Agreement must be filed
within one (1) year from the date that the cause of
action arose.
(d) Enforceability -
Seller’s failure to enforce, or Seller’s
waiver of a breach of, any provision contained
herein shall not constitute a waiver of any other
breach or of such provision.
(e) Assignment - This
Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective
successors and permitted assigns and designees;
provided, however, neither party shall have the
right to transfer, assign or delegate its rights or
obligations under this Agreement or any portion
thereof without the prior written consent of the other
party (except that either party may assign this
Agreement to a parent, subsidiary or successor
corporation without such consent).
The Terms & Conditions herein apply to Spectrum
subsidiaries Spectrum Chemical Mfg. Corp. and Spectrum
Pharmacy Products.